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Monday, April 13, 2009

The Philippines claimed extended continental shelf over Benham Rise

By Tessa Jamandre, Vera Files

The Philippines has filed before the United Nations a claim over Benham Rise, an extinct volcanic ridge off t­he east coast of Luzon, beating the May 13 deadline for states to submit claims over their extended continental shelves.

The Philippine delegation deposited the claim with the UN Commission on the Limits of the Continental Shelf (CLCS) in New York City on April 8, making clear it was only a “partial submission.”

This means that other submissions, including those over disputed territories, would be made later. The disputed Kalayaan Island Group, which part of the Spratly Islands, and Scarborough Shoal are also said to be part of the country’s extended continental shelf and are believed to contain oil, natural gas, minerals and polymetals.

By filing the claim over Benham Rise, which is undisputed territory, the government has stopped the clock on the UN deadline and buys time to sort out border issues with its neighbors over the Kalayaan islands and Scarborough Shoal.

“As a gesture of good faith, the Philippines makes this partial submission in order to avoid creating or provoking maritime boundary disputes where there are none, or exacerbating them where they may exist, in areas where maritime boundaries have not yet been delimited between opposite or adjacent coastal States,” said the government in its partial submission.

The UN defines the continental shelf as the “the seabed and subsoil of the submarine areas that extend beyond its territorial sea” up to 200 nautical miles from the archipelagic baseline. A conti­nental shelf that goes farther than 200 nautical miles is called the extended continental shelf.

Claim to Benham Rise

The Philippine claim over Ben­ham Rise was prepared long before Congress enacted Republic Act 9522, or the Archipelagic Baselines Law, whose constitutionality is being questioned in the Supreme Court.

The Benham Rise Region is bounded by the Philippine Basin on the north and east, and by Luzon on the west and south. The submission asserted that Benham Rise is an extension of the Philippines’ continental shelf based on seismic, magnetic, gravity and other geological data collected.

The executive summary of the Philippine submission said the baselines used in the partial submission conform with the requirements of the UN Convention on the Law of the Sea (UNCLOS) and were used as the basis for delineating the maritime territorial and jurisdictional zones, including the continental shelf.

It was Philippine Ambassador to the UN Hilario Davide who filed the country’s partial submission with the commission. Among those who traveled to New York for the submission were lawyer Henry Bensurto, secretary general of the Center for Maritime and Ocean Affairs of the Philippine Department of Foreign Affairs, and Ambassador Minerva Falcon, head of the department’s Foreign Service Institute.

A Philippine delegation is again expected to travel to New York to deposit the rest of the submissions in August, when the commission meets en banc.

Within UN rules

Bensurto said in an interview before leaving for New York that UN rules allow a partial submission. The government’s executive summary quoted the UN commission rules of procedure that “partial submissions may there­fore be made by a single coastal State for areas of its continental shelf that are not the subject of a maritime boundary dispute or a future maritime boundary delimitation.”

Galo Carrera-Hurtado of Mexico, a commissioner of the Commission on the Limits of the Continental Shelf, helped the Philippines prepare its submission.

The Benham Rise Region is not subject to any maritime boundary disputes, claims or controversies, the executive summary said.

The country’s west coast facing the South China Sea is another matter. The Archipelagic Baselines Law has redrawn the country’s outer limits and from there, its extended continental shelf and exclusive economic zones overlap with Japan, China, Vietnam, Taiwan, Palau, Malaysia and Indonesia.

All these overlaps projected from the newly enacted baseline law will have to be subject to border delimitation agreements before a complete and final submission to the UN is made.

Bensurto said that if an agreement is reached in border talks, then the Philippines could submit a claim unilaterally or jointly with the country concerned.

“For the controversial areas we don’t give up any claim, but we allow time, process, diplomacy or whatever tools are available to resolve it because anyway that is not going to be subject to any deadline,” he said. “So we just . . . do a partial submission in an area that is noncontroversial, nondisputed because if we insist to submit on contested areas nothing will happen, it will just be shelved.”

Supreme Court case

University of the Philippines law professors Merlin Magallona and Harry Roque, their students in constitutional law and public international law, and Anakbayan party-list Rep. Risa Hontiveros have questioned the constitutionality of Republic Act 9522 before the Supreme Court.

They also asked the High Tribunal on April 2 to issue immediately a temporary restraining order and writ of preliminary prohibitory injunction upon learning that the Philippine delegation was leaving on April 5 to file a partial claim in New York, but to no avail.

The 71-page petition filed said the new law “radically revised” the definition of the Philippine archipelago under the Treaty of Paris, resulting in a roughly triangular delineation that excludes large areas of waters within the 600 miles by 1,200 miles rectangle enclosing the “Philippine archipelago” as defined in the Treaty of Paris.

Republic Act 9522 redrew the country’s baselines to comply with the UN convention requirements for an “archipelagic state,” in the process excluding the disputed Kalayaan islands and Scarborough Shoal from the main archipelago and classifying them instead of “regimes of islands.” The UN Convention on the Law of the Seas defines a regime of islands as islands or naturally formed areas of land surrounded by water that remain above water during high tide.By declaring the Kalayaan islands and Scarborough Shoal as regimes of islands, Magallona, Roque and their co-petitioners said the country has lost 15,000 square nautical miles of terri­torial waters.

Republic Act 9522 weakened the country’s claim not only over the Kalayaan islands but also over Sabah, they argued.

The Kalayaan Island Group is part of the disputed Spratlys chain of islands being claimed in part by the Philippines, Malaysia, Taiwan and Brunei, and in whole by Vietnam and China. The Philippines and Malaysia, meanwhile, have conflicting claims over Sabah in northern Borneo.

No legal effect

Administrator Diony Ventura of the National Mapping and Resource Information Authority (NAMRIA), which is involved in preparing the claims, said the case against Republic Act 9522 would have no legal effect on the extended continental shelf as partially submitted to the UN.

“As long as our measurement is in accordance with the UN process and procedure, there is no effect,” he said. “Extended continental shelf is a different topic . . . We didn’t include R.A. [Republic Act] 9522 there. When we were preparing it then, the R.A. wasn’t there yet and the line that we used there is according to the guidelines of the CLCS.”

Ventura said the partial submission was arrived at from a purely scientific undertaking, including studies that prove that Benham Rise is the “natural prolongation” of the country’s land mass.

“There’s even the historical evolution of the land supported by a hydrographic survey and an underwater map,” he said.

From 2004 to 2008, multi-beam echo-sounding survey cruises were conducted to collect hydrographic data to determine the morphology of the seabed in the Benham Rise Region. The data were supplemented by additional data from international bathymetric surveys and an analysis of international research projects.

The Benham Rise Region also satisfies the 350-mile constraint line set by the Commission on the Limits of the Continental Shelf since the outer limits of the continental shelf are located landward of the constraint line. The constraint line is located 350 miles from the baselines from which the breadth of the territorial sea is measured.

As to the Constraint Line requirement—2,500 meters plus 100 miles—the outer limits of the continental shelf beyond 200 miles in the Benham Rise Region is delineated by straight lines not more than 60 miles in length, connecting fixed points not more than 60 miles.